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Tuesday, February 16, 2016

The West Wing may not be the best source for resolving political problems

Let me begin by saying that I loved The West Wing while it was on, before I decided Aaron Sorkin's writing was unbearable and repetitious. I even wrote something (no longer available online) about the show's many story lines about presidential and vice-presidential succession, which has always been a constitutional fascination. And in broad strokes, the show kind-of predicted the four players in the 2008 Presidential race.

Lisa McElroy (Drexel) writes in Slate about The West Wing's apparent solution to our current Supreme Court dilemma: Presented with a chance to replace a deceased conservative justice but facing a Republican Senate, second-term President Bartlet creates a bargain by making two ideologically extreme appointments--a very liberal woman as Chief and a very conservative man, hoping the Senate will go for the trade-off.  I recalled the episode when I heard about Scalia's death last weekend. I do not remember if I believed this was a good idea when the episode aired in March 2004; I believe it is a terrible idea now (although that might just reflect how I feel about Sorkin's work).

First, it required that White House staffers create a second vacancy by convincing/coercing/strong-arming the Chief Justice into retiring.  We no longer applaud (or should applaud) Johnson-esque tactics when it comes to the President and the Court. But Sorkin loves the "honesty" of such straight-talking methods and ends-justify-means strategies, even if in real-life they come across as noxious. I would not want an Obama aide directly lobbying Ginsburg or Breyer to retire.

Second, what the show depicts seems to me a terrible trade for the Democrats. Yes, the Democrats get to appoint the Chief (which has not happened since Fred Vinson in 1946). And that is significant for assigning opinions and perhaps for the future direction of the Federal Rules of Civil Procedure. But an even trade does nothing for the Democrats in terms of the cases that matter, since it does not alter the judicial-ideological balance on the Court.* Sorkin was decrying an influx of "moderates" on the Court and wanting something on the poles. But the current Court is all poles, with no real middle at all. That means that a single appointment truly changes the ideological balance. To put it in modern terms: I would not want to see Obama appoint, say, Goodwin Liu and then replace Breyer with, say, Brett Kavanaugh.**

[*] Updated: Lisa tells me that the dialogue does indeed reveal the Court's make-up: six "centrists," two staunch conservatives, and one clarion voice articulating a liberal vision who may have been close to retirement. This basically reflects the Court in October Term 1990: Rehnquist and Scalia as the conservatives, Marshall alone as the liberal voice (Brennan had just retired), and White, Powell, Blackmun, Stevens, O'Connor, and Souter forming the middle. 

[**] The resulting Court--Roberts, Kennedy, Thomas, [ed: forgot him the first draft], Ginsburg, Alito, Sotomayor, Kagan, Liu, Kavanaugh--would leave us exactly where we are, only with the clock reset by a conservative who would be on the Court for another 30 years joining three conservatives likely to serve for another twenty. As a Democrat, it certainly would undermine one of the reasons I have been happy to control the White House these past seven years and why I believe this election is so important.

Worse, the new liberal chief was a decade older than the new conservative associate justice (going by the age of the actors at the time--Glenn Close was 56, while William Fichtner was 47). In actuarial terms, he was likely to remain on the Court, and thus to wield influence, longer than she was.

Third, the episode celebrates across-the-aisle disagreement, engagement, and friendship as a practical solution. Some have offered the friendship between Ginsburg and Scalia as a model for what Obama and Mitch McConnell and Paul Ryan might follow. But lost in all this is that, despite their friendship, Scalia and Ginsburg rarely agreed on key constitutional issues. And their friendship did nothing to enable either to sway the other. Recall Ginsburg's moving tribute to her friend: "when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation." Not that Ginsburg was convinced or moved to change her mind; only that she made the arguments for her position stronger. Which is, perhaps, good for the development of the law (that is Lisa's take-away). It does nothing for political impasse--Obama and McConnell can sing duets all they want, that is not going to produce any actual legislation. And it does not change the dynamics that five conservative Justices always get their way in the face of four liberal Justices. (This is as legal realist as I get, I think).

Finally, the episode bothers me because, put in a room together, the two federal judges/prospective nominees begin arguing constitutional law--as if this is what judges do when they get together in social settings (this was, of course, necessary for President Bartlet to see the benefit of two smart opposites engaging one another). Worse (and ironically, given the show's obvious political views), the dialogue made the conservative judge seem like he was right and smarter than the liberal. It included the following exchange (this is paraphrasing somewhat, from memory):

    Lang (Close): If we followed your way [presumably meaning Originalism], we would still have slavery and women couldn't vote.

    Mulready (Fichtner): And hence the Thirteenth, Fourteenth, and Fifteenth Nineteenth Amendments.

   Lang: Well, thank you for that.

But that actually is the answer--consider the text and its meaning at the time, but when an amendment overrides some provision, follow the amendment. Yes, slavery was part of the Constitution, until those parts of the Constitution were overridden by the Thirteenth Amendment. And saying otherwise just makes the position sound silly.

I know, I know--it is only a TV show.

Posted by Howard Wasserman on February 16, 2016 at 07:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Scalia was apparently not "fine health-wise until Friday."

Information was released he was not in good health, so much that surgery to fix a shoulder injury was deemed too risky. On West Wing, it was apparent the liberal justice's mind was starting to go. The plan was not just to find an older justice and have them merely to have an early retirement. It complicates the situation.

Posted by: Joe | Feb 17, 2016 5:29:46 PM

Doesn't McElroy note that Sorkin left the West Wing before this episode?

Posted by: Dan | Feb 17, 2016 5:18:20 PM

I like the West Wing idea and I'm proud to call Myself a Liberal. Joe says J. Ginsburg is fine health-wise. J. Scalia was too until Friday. If the President won't do an "even trade", He should nominate Someone to help with the election: Ted Cruz; remove Him from contention and not only does that senate seat open up but the GOP is less prepared for November, putting Democrats in a position to replace J. Kennedy and J. Thomas.

Posted by: Brian | Feb 17, 2016 4:13:22 PM

Completely agree. Although counter-perspectives fostering more compelling and persuasive positions is a lovely sentiment and certainly, I believe, a realistic outcome (kind of like Batman and Joke, an unstoppable force meeting an immovable object), it does not balance scales. Conservatives have controlled the court since the Warren years and a liberal appointment would at the very least, if moderate, drive the court back to neutral, and if actually liberal, tilt the scales. I would love to see Breyer become the swing vote. In the end, the strength of a given majority or dissent being made stronger by an equally compelling dissent or majority arguing the opposite is an ancillary benefit but fails to address the important issue: deciding who is in the majority and who is in the dissent, especially on tough decisions drawn on political lines. Democrats should under no circumstances do this.

Posted by: Robert | Feb 17, 2016 3:23:34 PM

So, you don't feel liberal judicial arguments had been properly outlined in the three- or four-episdode arc Mendoza confirmation? Or when she clearly had the upper hand during their Commerce Clause discussion?

And what does my anonymity have to do with anything?

Posted by: YesterdayIKilledAMammoth | Feb 17, 2016 8:10:24 AM

Well, I thought the point was more that the show did a lousy job of depicting the liberal arguments. But if you would like to reach a different conclusion in your snarky anonymity, have at it.

Posted by: Howard Wasserman | Feb 17, 2016 7:49:59 AM

So, you're upset that one scene in a tv show depicted a conservative having a brief upper hand over a liberal justice? Especially when an earlier scene showed the same liberal justice go on an epic, awe-inspiring takedown of the judiciary committee? How many times did Toby, Josh, C.J., Sam, and Leo school their conservative nemeses?

Just to be clear, on tv a liberal character should never lose an argument to a conservative character?

Posted by: YesterdayIKilledAMammoth | Feb 17, 2016 1:13:27 AM

Anyway, there was already a concern the liberal justice was losing it (writing opinions in verse etc.). The idea wasn't just to have him retire for fair-sies or something. He was a ticking time bomb.

RBG appears to be doing okay (if assumed to be physically frail though she probably will be as frail as Taney was into his 80s) and the hope is that the Democrats will win the presidency anyhow in November (I think RBG herself thinks that will happen myself).

Posted by: Joe | Feb 16, 2016 8:12:08 PM

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